iiinova — where your digital self keeps evolving

Yeah, apparently this was just an effort for me to give a "hot take" on the Governor, and when I actually started talking about the law they told me they'd be back in touch. Maybe. When a follow-up was necessary.

Who knew that "strike suits" would be about forcing companies to fall in line rather than just extracting some settlement fees. It's a wild new world.

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I'm actually speaking with a reporter about this lawsuit soon. I have plenty of thoughts, but is there anything you think I should emphasize?

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To say nothing of the rather bizarre loss-causation arguments. Yikes.

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Like Ben, I am shocked (but shouldn't be) by the court's interpretation of the PSLRA as applied here. I'm also mystified about how Target both trades in an efficient market, but the voluminous news coverage was irrelevant to the "total mix."

Also, the draft that you posted a few days back has been exceptionally helpful with my thinking. Thanks!

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That should say not so much DEI *explicitly,* but...

It's a more macro take on corporate governance in the shadow of the culture wars (my current working title). Not so much DEI, but the bigger question of corporate political activity/issue advocacy and related SH activism. Boy have the ideological tables turned since Citizens United!

Jay Kesten @jaykesten.bsky.social · 07/02/2025

I am desperately trying to finish a piece for this cycle that touches on precisely this curious ideological shift. Would be thrilled for your thoughts.

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Corporate political spending should be a matter of shareholder concern/approval. There was a lot of eyerolling when I presented a paper a nearly a decade ago and explained how this would avoid political extortion: surely the government would never ask public corporations to kiss the ring!?

Jay Kesten @jaykesten.bsky.social · 01/02/2025

My allegedly libertarian friends tell me that all we're seeing here is the Silicon Valley Bro "move fast and break things" mentality, and so I shouldn't worry about it. Some of them even concede that maybe that's not a great way to run the infrastructure of the largest economy in the world.

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Jay Kesten @jaykesten.bsky.social · 25/01/2025

What if...and hear me out here, cuz it's crazy ... these firms genuinely believe that what they are doing is, in fact, value-maximizing!?

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Jay Kesten @jaykesten.bsky.social · 25/01/2025

We're watching the classical liberal tropes about the marketplace for ideas implode under their own weight right in front of us. And, ironically, being lectured simultaneously about how all viewpoints, no matter how absurd or extremist, must be engaged with seriously and civilly.

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Jay Kesten @jaykesten.bsky.social · 10/01/2025

This is such a lovely complement to my morning coffee. Thanks for this, Ann !

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Jay Kesten @jaykesten.bsky.social · 25/12/2024

Yes, apparently all they want is more "public comment." Also, in unrelated news, do you know how many people I've seen complain about how "we the people" need to stop subsidizing banks by paying for the FDIC?

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Jay Kesten @jaykesten.bsky.social · 11/12/2024

That's a really interesting point! I should try again but with the input of a strong student outline. Maybe I'll solicit a couple from my top students and see what the model can do with that.

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Jay Kesten @jaykesten.bsky.social · 10/12/2024

When I run my current (and the last few years') exams through the LLMs, they give B/B- answers at best. Mostly because they can give you headlines, but no real analysis and absolutely garbage case coverage/application of facts. Half the time, they make up the facts of key cases.

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Jay Kesten @jaykesten.bsky.social · 10/12/2024

I'm torn about this one. I write exams such that particular issues are presented. I do that to ensure that I'm testing what I consider to be a representative sample of the core concepts/transactions/etc.. that I want students to know about. Maybe AI can help with that, but I'm skeptical.

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Fencing is such an amazing sport. I miss it terribly, and I need to stop coming up with excuses not to get back into it.

In which case, at best, this is thrown back to the states to decide, regardless of the clear and present harms caused by denying evidence-based medical care, but only when we don't like the reason why -- no pushback on adolescent cis-gendered males receiving gender-affirming breast reduction surgery

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I worry that he says this case isn't really about that at all. Put differently, he'd support a child's right to "identify" however they'd like and, when the times comes, be attracted to whomever they like without governmental interference, but not their right to medical intervention at present.

First, Bostock was about adults and thus entirely distinguishable. Second, his opinion in Bostock - once explicitly, but often implicitly - seems rather narrowly focused on sexuality itself. He talks about discrimination based on who people are attracted to or how they self-identify in that regard.

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While I often disagree with him, I generally think Gorsuch is sufficiently conscientious not to ignore Bostock entirely. That said, I could absolutely see him distinguishing it (likely in some sort of concurrence, distancing himself from the inevitable Alito/Thomas opinion) on a couple grounds.

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I worry that he says this case isn't really about that. Put differently, he'd support a child's right to "identify" however they'd like and, when the times comes, be attracted to whomever they like without governmental interference, but not their right to medical intervention at present.

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Jay Kesten @jaykesten.bsky.social · 03/12/2024

I'm not generally a ConLaw person, but I've been following the Skrmetti case quite closely. In particular, I've seen a variety of commentary on Gorsuch -- his silence during the oral argument, and his opinion in Bostock. I have some thoughts, below, but I welcome more expert commentary!

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How does this limit the supply of research? Maybe it takes longer to get published in the peer-reviewed process, but there's nothing preventing circulation of those working papers. The law review submission cycle has its own gatekeepers, and includes a rather suspect element of horse-trading.

Corporate law/M&A people -- is there anything left to Siliconix (and the distinction between freeze-out mergers vs. tender offers)?

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A bit about me: I teach corporate law (and M&A, CorpFin, corporate governance, etc...) at FSU. I write primarily about public markets: everything from the law and economics of the IPO decision, to appraisal arbitrage, to corporate governance in the shadow of the culture wars.

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I've been following this back-and-forth for awhile -- fantastic work, as always. A student asked me recently whether there was anything left to Siliconix (either pre- or post-Match). I'd be thrilled to hear your thoughts!

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